DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2009-178
XXXXXXXXXXXXXX
XXXXXXXXXXXXXX
FINAL DECISION
This proceeding was conducted according to the provisions of section 1552 of title 10 and
section 425 of title 14 of the United States Code. The Chair docketed the case after receiving the
completed application on June 25, 2009, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c).
appointed members who were designated to serve as the Board in this case.
This final decision, dated March 11, 2010, is approved and signed by the three duly
APPLICANT’S REQUEST
The applicant asked the Board to remove an Administrative Remarks form CG-3307
(“Page 7”) dated November 19, 2007, from his record and to order the Coast Guard to appoint
him to chief warrant officer (CWO) on June 1, 2010, as if he had been selected for appointment
to CWO2 by the CWO appointment board that convened in April 2009.
APPLICANT’S ALLEGATIONS AND EVIDENCE
The applicant alleged that on October 24, 2007, a colleague, YN2 X, placed him on
report on a charge of having an inappropriate relationship with YN2 X’s wife. Because YN2 X
also broke into his house twice, the applicant got a civil restraining order against YN2 X on
November 13, 2007. After the command investigated YN2 X’s allegations and misconduct, the
District Chief of Staff gave the applicant an order not to contact YN2 X’s wife and gave YN2 X
an order not to contact the applicant. The applicant alleged that the no-contact order is not
evidence that he had an inappropriate relationship with YN2 X’s wife; it was only intended to
“diffus[e] a rapidly escalating situation and avoid[] further aggressions by YN2 [X].” The no-
contact order, dated November 14, 2007, states that it concerns the applicant’s
association and contact with [YN2 X’s wife]. The nature and consequences of your association
with [her] to date reflects poorly on you and has the potential to bring discredit upon the Coast
Guard. I am issuing this administrative order for the following reasons:
a. To avoid a breach of the peace and respect the wishes of [YN2 X] that you not have any con-
tact whatsoever with his lawful wife.;
b. To protect the reputation of the Coast Guard and to maintain good relations between our
armed service and the xxxxx community; [and]
c. To protect you from further allegations of adultery and misconduct.
The no-contact order stated that it would “remain in effect until July 31, 2010 unless sooner can-
celed by me or by higher authority or until a formal decree of divorce is issued by a court of
competent jurisdiction to [YN2 X and his wife].”
In addition, on November 19, 2007, both the applicant and YN2 X received negative
Page 7s. YN2 X’s Page 7 documented his involvement in an “alcohol incident.” The Page 7 that
was issued to the applicant but is no longer in his record stated the following:
Entry Type: Performance and Discipline (P&D-7)
Reference: 10 USC 934, Article 134, Uniform Code of Military Justice [1]
Responsible Level: Unit
Entry: (General—Negative)
19 NOV 2007: You were formally counseled on 15 NOV 07 as a result of a standard investigation
into allegations that you engaged in an inappropriate relationship with the spouse of another Coast
Guard member. I have determined that your association with the spouse of that co-worker was
prejudicial to good order and discipline and has had a measurably divisive effect on the morale
and cohesion of this command.
I issued you a no contact order on 15 NOV 07 in which I ordered you not to have any further con-
tact with the spouse of the Coast Guard member that was the subject of the investigation. This
order will remain in place for the remainder of your tour of duty on the Xth CG District staff, or
unless sooner rescinded by me. Any further contact or association with the spouse of this Coast
Guard member could result in non-judicial punishment and/or other adverse administrative action.
The applicant stated that on November 26, 2007, he requested a mast with the District
Chief of Staff to protest this Page 7. He gave the Chief of Staff his own oral and written descrip-
tions of the facts and informed the Chief of Staff that he had called the police twice “to report
breaking and entering” by YN2 X. The applicant stated that he later received a restraining order
against YN2 X through the xxxxxn Circuit Court. The applicant argued that these actions show
that he “was not attempting to engage in or conceal an alleged affair.”
Applicant’s Written Statements to the Chief of Staff
The applicant submitted two unsigned statements, which he apparently submitted to the
Chief of Staff after receiving the original Page 7 dated November 19, 2007. The first contains
his allegations about his experiences with YN2 X and his wife. In it, the applicant wrote that he
and YN2 X worked together closely, often traveled together for work, and were very close
friends who babysat and dog-sat for each other. About six months previously, YN2 X had told
him that his wife had filed for divorce. Thereafter, the applicant “had several separate
1 Article 134 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. § 934. prohibits “all disorders
and neglects to the prejudice of good order and discipline” and “all conduct of a nature to bring discredit upon the
armed forces,” including adultery.
conversations with [YN2 X] and with [his wife]. Both had confided in me with details of their
separation and the events that led up to it. [The wife] had confided in me to a greater extend than
[YN2 X].” When YN2 X’s wife asked him how his own ex-wife and children had returned home
from xxxxx after his divorce, he “told her about the Early Return of Dependents policy.” He also
told YN2 X about the policy and discussed likely asset reallocation with him.
The applicant wrote that he “tried to remain a neutral party” but sometimes he “would
share information from each other’s conversations with the other.” In early September, [the
wife] came to the applicant’s house “distraught and in tears” so he invited her in. When [the
wife] complained to him that YN2 X was only paying for their son’s daycare, the applicant
informed them both that YN2 X was legally required to pay a portion of his basic pay, COLA,
and BAH to her while they were separated.” In addition, the wife asked if she could rent his
spare room because she could not afford an apartment. He refused because she was still married
to YN2 X. The applicant alleged that, as soon as she left, he called YN2 X and told him what
had happened. The applicant told YN2 X that he needed to support his dependents and that his
wife’s visit and questions had made him feel awkward because he “did not want to be in the
middle of their mess.” He advised YN2 X to get help from the Employee Assistance Program.
On October 12, 2007, the applicant stated, YN2 X’s wife came to his house and woke
him up sometime between 0200 and 0230. She appeared intoxicated and distraught. She told
him that YN2 X had been sending her hundreds of “very disturbing text messages and phone
messages” and asked him if he thought YN2 X had been acting rationally. He spoke with her for
15 to 20 minutes, promised to speak to YN2 X, and let her sleep in his spare room, where he set
up a makeshift bed for her with a pillow and comforters, because she was not fit to drive. Then
he went back to sleep. However, at about 0430, he awoke to find YN2 X screaming at his wife
in Russian in the bathroom. YN2 X saw the applicant and grabbed him. The applicant pushed
him away and went downstairs, where he found his front door and door jamb destroyed.
Therefore, he called the police to report the crime. YN2 X came downstairs, accused him of
sleeping with his wife, and fled. The police came and told him they had apprehended YN2 X,
but he refused to press charges because the wife asked him not to.
The applicant alleged that YN2 X’s wife was never in his bedroom and was never
unclothed in his home. He alleged that YN2 X saw the makeshift bed that the applicant had cre-
ated for his wife on the night of October 12, 2007. The next day, YN2 X called him and apolo-
gized. The applicant “chewed him a new one”; told him he was not welcome at the applicant’s
house any more; told him that he would have gone to jail if his wife had not begged the applicant
not to press charges; and told him he “needed serious help.” The applicant “ordered him to
report to Worklife first thing Monday morning and get enrolled in EAP.” On Tuesday, the appli-
cant told him that he had spoken to CAPT C, who had said that “we could work it out.”
On Friday, October 19, 2007, the applicant alleged, YN2 X came to his house ostensibly
to hang out and make peace. However, he actually borrowed the applicant’s computer on a pre-
tense and installed a “subsystem monitoring spyware program.” The applicant assumed that
YN2 X was hoping to find evidence that the applicant was having an affair with his wife.
On Sunday, the applicant wrote, he came home from a short trip to xxxxxxx and cleaned
out his garage so that he could park his car inside for the first time. Later that night, he awoke
when his dog started barking. Downstairs, he found YN2 X looking through his papers and talk-
ing on the telephone. YN2 X, who smelled of alcohol, dropped the phone and ran out of the
house, and the applicant called the police. While he was on the phone with the police, YN2 X
came back into the house and told him that it was a joke. The applicant told him to leave, and
YN2 X left. The applicant stated that he believes that YN2 X thought he was not home because
his car was not parked in the driveway as usual. The applicant called the command and told
CAPT C that YN2 X had broken into his house for a second time. He learned that YN2 X had
never spoken to CAPT C about the first incident, as he had claimed. When the police arrived,
the applicant agreed to press charges. YN2 X was also charged with driving while intoxicated as
his blood alcohol content measured 0.13.
The applicant wrote that his relationship with YN2 X’s wife “has always been a concilia-
tory one where I would share my advice and experiences whenever she would ask me. It was
also an emphatic [empathetic?] one where we have both been down the same road and gone
through the same situation and shared these experiences with each other.” He concluded that
YN2 X was likely alcohol dependent and bipolar and needed psychological evaluation and coun-
seling. He suggested that YN2 X had brought his trouble on himself by refusing to sign an
uncontested divorce decree as his wife had requested because, if he had, his wife and son would
no longer be living in XXX.
In his second statement, which is a request for a “request mast”2 with the Chief of Staff to
discuss the original Page 7 dated November 19, 2007, the applicant alleged that the Page 7 had
“inflicted massive damage to my credibility and integrity and caused severe doubts about my
loyalty among my co-workers and superiors.” He argued that the Page 7 had assigned guilt and
punishment without due process because he had never been taken to mast (non-judicial punish-
ment under Article 15 of the UCMJ) where he would have had the opportunity to defend himself.
He admitted, however, that he did not actually want to go to mast. He wrote that his “silence in
and during the investigation was by no means an admission of guilt, but rather reflected my
introvert personality and reclusive private life,” and that he had abided by the no-contact order
“to the detriment of my friendships.” He asked the CO to expunge the Page 7 his record.
Final Action on the Administrative Investigation
On December 31, 2007, CAPT N took final action on the investigation. The summary of
the facts states that in October 2007, YN2 X began to suspect that his wife was having an affair
with the applicant because of a “lack of marital consortium” and her “growing interest in pro-
vocative lingerie.” In addition, his wife “had begun to use amorous euphemisms for [the appli-
cant] as her computer password and ‘logons.’” On the night of Friday, October 12, 2007, YN2
X’s wife told him she would be spending the night at a girlfriend’s house. Late that night, after
consuming alcohol, YN2 X left his son with a friend and went looking for his wife. She was not
at the girlfriend’s house; instead, he found her car in front of the applicant’s house. At about
0330, he kicked in the applicant’s front door and found his wife in an upstairs bathroom trying to
2 Under Article 9-2-3 of Coast Guard Regulations and Article 14.B.2.a. of the Personnel Manual, members may seek
a “request mast” with their CO to appeal receipt of a Page 7.
arrange her hair while the applicant was making the bed in the master bedroom.. His wife had a
discoloration on her upper lip. She denied doing anything wrong, but YN2 X began shouting at
both of them. The applicant called the police, and YN2 X left. The applicant did not file a com-
plaint. YN2 X was stopped by police who spoke with him about his suspicions that his wife and
the applicant were having an affair. The police let him go with a warning not to drink and drive.
On Sunday night, October 21, 2007, YN2 X again drank alcohol and drove to the appli-
cant’s home. He entered the house through an unlocked door, but the applicant found him and
told him to leave. The applicant called the police. When the police interviewed the applicant,
they “found him evasive” and were convinced that the applicant “was lying to him.” The police
believed that the incidents resulted from a “love triangle gone bad.” YN2 X admitted to the
police that he had been at the applicant’s house and was intoxicated. YN2 X claimed that he had
gone into the house to play a joke, but he was charged with criminal trespass and DUI. On
December 18, 2007, the trespass charge was dismissed but he pled guilty to DUI.
CAPT N found that “each of the subjects and witnesses interviewed during the course of
the investigation were less than forthcoming.” He concluded that YN2 X had shown very poor
judgment and incurred an “alcohol incident” and that the applicant had an “unduly familiar
relationship” with YN2 X’s wife, which was “of a nature to bring discredit upon the Coast Guard
and was a significant contributing factor in triggering [YN2 X’s] misconduct.” Among other
actions, CAPT N stated that the applicant should be given an order to cease contact with YN2
X’s wife and be issued a Page 7 “documenting his counseling regarding the inappropriate
relationship with [the wife].” He also found that the charge against the applicant should be
dismissed.
Disputed Page 7
On January 3, 2008, CAPT N sent the applicant an email stating that he had considered
their discussions and was willing to revise the Page 7 dated November 19, 2007. On January 16,
2008, CAPT N sent the Personnel Command a memorandum asking that the Page 7 be replaced
with another. He noted that the “overall basic content and intent is essentially the same between
the two CG-3307s; however, the entry type is different and updated.” The replacement Page 7,
which the applicant wants the Board to remove, appears in his record as follows:
Entry Type: Performance and Discipline (P&D-12)
Reference: Article 8-H-6c, Personnel Manual COMDTINST M1000.6 (SERIES) [3]
Responsibility Level: Unit
Entry:
19 NOV : You were formally counseled on 15 NOV 07 as a result of a standard investigation into
allegations that you engaged in an inappropriate relationship with the spouse of another Coast
Guard member. As a result of that investigation, I have issued you a no contact order in which I
ordered you not to have any further contact with the spouse of the Coast Guard member who was
the primary subject of the investigation. This order will remain in place for the remainder of your
tour of duty on the Xth CG District Staff, or until a formal decree of divorce is issued by a court of
competent jurisdiction, or unless sooner rescinded by me. Any further contact or association with
3 Article 8.H.6.c. of the Personnel Manual authorizes formal or informal counseling about relationships of concern
and documentation of such counseling on a Page 7 or an Administrative Letter of Censure.
the spouse of this Coast Guard member could result in disciplinary action under the UCMJ and/or
other adverse administrative action.
CWO Appointment Boards 4
On March 7, 2008, CAPT N signed an evaluation report endorsing the applicant’s bid for
appointment to CWO. The report contains many highly laudatory comments about the appli-
cant’s performance and strongly recommends him for selection. The applicant was selected for
appointment by the 2008 CWO appointment board, and his name appears as #27 out of the 40
yeomen found to be fully qualified for appointment to CWO in the Personnel Administration
specialty. However, his name is not “above the cut” for a guaranteed appointment. This list is in
effect from June 1, 2009, through May 31, 2010, and the cutoff for advancement is #19.
On March 6, 2009, CAPT N signed another highly laudatory draft report to support the
applicant in his bid for appointment to CWO. However, on April 28, 2009, the Acting Com-
mander of the Coast Guard Personnel Service Center (CGPSC) informed the applicant in a
memorandum that the CWO appointment board that convened on April 14, 2009,
did not include your name as one of the candidates recommended for appointment. The Board
elected to remove you from consideration under the provision of [Article 1.D.8.e. of the Personnel
Manual]. The following excerpt from the Board Report sets forth the specific reason:
“[The applicant] was found not fully qualified for appointment to CWO2 due to documentation in
the record regarding an inappropriate relationship which the board by at least two-thirds majority
determined to be inconsistent with the definition of a chief warrant officer found in Section
1.D.1.a. of the Coast Guard Personnel Manual …[and the board’s own precept].”
The applicant alleged that the 2009 CWO appointment board clearly misinterpreted the
Page 7 as evidence of an inappropriate relationship when, in fact, it only refers to allegations of
one and he was “proven innocent” of the charge. The CWO appointment eligibility list resulting
4 Article 1.D.1.a. of the Personnel Manual states that “CWOs are mature individuals with appropriate education and
specialty experience who have shown through demonstrated initiative and past performance they have the potential
to assume positions of greater responsibility requiring broader conceptual, management and leadership skills.” The
procedures of a CWO appointment board appear in Article 1.D.8. of the Personnel Manual. Each board consists of
at least five officers, who review the candidates’ records. Under Article 1.D.8.e.,
1. The Board must first determine, by specialty, if all primary candidates are fully qualified to
become chief warrant officers based on the information furnished in subparagraph d. above and
the professional judgment of the Board members. After making this determination, the Board
must then rank order the primary candidates on a best-qualified basis.
2. The Board shall not recommend candidates for appointment whose personal conduct and
associations are such that reasonable grounds exist for rejection on the basis of loyalty. Although
a candidate may have been considered as meeting the minimum requirements, the Board may find
trends or patterns of conduct, indebtedness, performance, or behavior which it considers disquali-
fying and therefore may find the candidate not fully qualified for appointment.
3. The Board will submit a report of those recommended for appointment in each specialty to the
Secretary of Transportation [sic] (the Secretary) for appointment authority.
Article 1.D.8.f.1. states that the Board’s report shall include the list of those selected and, “[i]f the Board does not
recommend a candidate for appointment, the reasons therefore shall be indicated in the Board Report.”
from the April 2009 board will be in effect from June 1, 2010, through May 31, 2011. The appli-
cant’s name is not on this list.
On May 14, 2009, a senior chief petty officer contacted the Personnel Service Center
(PSC) on the applicant’s behalf. He stated that the Page 7 was generated on an allegation of an
inappropriate relationship, which was investigated and dismissed. Therefore, the letter came as a
shock to the member. He noted that the applicant was #27 on the prior CWO list and asked if the
applicant would be removed from that list.
On May 17, 2009, the Chief of the Boards Section at PSC responded and stated that any-
one applying for appointment to CWO is responsible for the content of his record. He stated that
the applicant’s name would not be removed from the prior list and that he could reapply for
appointment the following year. He also stated that “each Board, comprised of different mem-
bers each year, is charged with best meeting the needs of the service as defined by the current
year Commandant’s Guidance to Boards and Panels, the Precept, and the PERSMAN.”
VIEWS OF THE COAST GUARD
On November 26, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted
an advisory opinion in which he recommended that the Board deny relief in this case.
The JAG stated that the applicant has “failed to prove his Supervisor/Commanding Offi-
cer acted contrary to CG policy in his decision to issue the applicant an administrative Page 7
entry based on the findings of an administrative investigation.” The JAG noted that absent evi-
dence to the contrary, the applicant’s command is presumed to have prepared the disputed Page 7
correctly and that the applicant bears the burden of proving that it is erroneous or unjust. The
JAG stated that CAPT N, the District Chief of Staff, prepared the Page 7 to document counseling
about an inappropriate relationship and slightly modified the Page 7 on January 16, 2008, follow-
ing the completion of the administrative investigation. The JAG stated that the disputed Page 7
“was issued to accurately document the applicant’s involvement in an inappropriate relationship
IAW Article 8.H.6.c.” of the Personnel Manual, and that the applicant has not proved that the
Page 7 is legally or factually erroneous.
The JAG argued that the applicant has failed to prove that the action of the 2009 CWO
appointment board in finding him not qualified for appointment was erroneous or unjust under
Article 1.D.8.e.2. of the Personnel Manual.5 The JAG alleged that the board acted pursuant to
policy and noted that such action requires a determination by two-thirds of the membership of
the board that he was not fully qualified for appointment to CWO. The applicant “is in no posi-
tion to ‘second guess’ the findings and actions of appointment boards” and “is not entitled to cir-
cumvent the CG’s appointment procedures by alleging the board misinterpreted a Page 7 entry.”
The JAG stated that the applicant “failed to provide any evidence which would expose the appli-
cant’s chain of command’s actions or the appointment board’s action as unjust or unwarranted.”
The JAG attached to the advisory opinion memorandum on the case prepared by the
Personnel Service Center (PSC), which recommended that the Board deny relief. PSC stated that
5 See footnote 3, above.
CAPT N’s final action on the investigation shows that he concluded that the applicant should be
counseled on a Page 7 regarding his inappropriate relationship with YN2 X’s wife. PSC com-
plied with CAPT N’s request dated January 16, 2008, to replace the original Page 7 with the dis-
puted Page 7 was followed. PSC stated that the applicant’s claim that the Page 7 should be
removed because CAPT N dismissed the UCMJ charge against him is incorrect because the Page
7 is accurate and properly documents the applicant’s counseling.
PSC further stated that a board’s selection of candidates for appointment to CWO “is both
an objective investigation as well as a subjective determination regarding the applicant’s suitabil-
ity. The dynamics of one board compared to the dynamics of another board are historically and
purposefully different. The Coast Guard cannot speculate as to why one board considered the
applicant despite the subject Page 7 while another board immediately ruled against the applicant.
This, in essence, is the application process.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On November 30, 2009, the applicant responded to the views of the Coast Guard. He
stated that the allegation that he was counseled about an inappropriate relationship “could not be
further from the truth.” He stated that the Page 7 shows that he was counseled about mere alle-
gations of an inappropriate relationship; that the investigation found that the allegations were
false; and that CAPT N therefore dismissed the charge and endorsed his candidacy for CWO.
The applicant argued that the misinterpretation of the Page 7 by PSC and the JAG proves
his claim that the 2009 CWO appointment board misinterpreted the Page 7. He alleged that
CAPT N’s actions in dismissing the charge, modifying the Page 7 to remove punitive language,
and strongly endorsing him for appointment to CWO show that CAPT N did not draw the con-
clusions assumed by the appointment board, the JAG, and PSC. He alleged that he had been
“proven innocent.” Therefore, the Page 7 should be expunged because its repeated misinterpre-
tation and harm to his career shock the sense of justice, and he should be appointed to CWO as if
he had been above the cut for guaranteed appointment on the appointment eligibility list resulting
from the CWO appointment board that convened in April 2009.
APPLICABLE REGULATIONS
Article 8 of the Personnel Manual concerns military discipline and 8.H. concerns frater-
nization and unacceptable and inappropriate relationships among Coast Guard members. Article
8.H.6.c. authorizes documentation of formal counseling about relationships as follows:
Early counseling often can resolve potential concerns about the characteristics of a relationship
and appropriate actions to ensure the relationship develops in a manner consistent with Service
custom. Counseling may be informal or more formal, including written documentation by Admin-
istrative Remarks, Form CG-3307 or an Administrative Letter of Censure ([see] Article 8.E.4.).
Counseling may include a direct order to terminate a relationship.
Enclosure (6) to the Pay and Personnel Procedures Manual (PPPM) provides instructions
for preparing Page 7 and states that they “are broken down into the following ‘types’”:
a. Accession (ACC-#)
b. Assignment and Transfer (A&T-#)
c. Advancement and Reduction (A&R-#)
d. Performance and Discipline (P&D-#)
Note: Includes indebtedness, non-support of dependents, general (positive/negative), evalua-
tions, good conduct eligibility, and weight
e. Separation (SEP-#)
f. Selective Reenlistment Bonus (SRB-#)
g. Selective Reserve (SELRES) Enlisted Bonus Programs (BON-#)
CAPT N in creating Page 7s for the applicant’s record:
Enclosure (6) also provides examples for each type of Page 7, including those used by
Entry-Type: Performance and Discipline (P&D-7)
Reference: None
Responsible Level: Unit
Entry: (General - negative)
(DATE): Petty Officer Jones was counseled for ………………………
(NOTE: Entry must be member specific and describe who, what, when, where,
why and how. Blanket entries describing generalities, which are photocopied
for inclusion in many members’ PDRs, are not authorized.)
A. B. SEA, CAPT, USCG
Commanding Officer
(DATE): I acknowledge the above entry.
J. P. JONES
Entry Type: Performance and Discipline (P&D-12)
Reference: Article 8-H-5b(2), Personnel Manual, COMDTINST M1000.6 (series)
Responsible Level: Unit
Entry:
(DATE): (document formal counseling pertaining to improper relationships)
A. B. SEA, CAPT, USCG
Commanding Officer
(DATE): I acknowledge the above entry.
J. P. JONES
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant’s
military record and submissions, the Coast Guard’s submissions, and applicable law:
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
1.
The application was timely.
2.
The applicant asked to be appointed to CWO on June 1, 2010, because the 2009
CWO appointment board found him unqualified for appointment because, he alleged, they mis-
interpreted the Page 7 in his record dated November 19, 2007. He further alleged that the Page 7
is unjust because it is easily misinterpreted, and he asked the Board to remove it from his record.
The Board begins its analysis in every case by presuming that the disputed information in the
applicant’s military record is correct as it appears in his record, and the applicant bears the bur-
den of proving by a preponderance of the evidence that the disputed information is erroneous or
unjust.6 Absent evidence to the contrary, the Board presumes that Coast Guard officials and
other Government employees have carried out their duties “correctly, lawfully, and in good
faith.”7
3.
The disputed Page 7 was placed in the applicant’s record by the District Chief of
Staff in accordance with Article 8.H.6.c. of the Personnel Manual. That article authorizes prepa-
ration of a Page 7 to document counseling needed to “resolve potential concerns about the char-
acteristics of a relationship and appropriate actions to ensure the relationship develops in a
manner consistent with Service custom.” Enclosure (6) of the Personnel Manual also expressly
authorizes Page 7s denoted as “P&D–12” to “document formal counseling pertaining to
improper relationships.” The Board concludes that the disputed Page 7 was authorized by regu-
lation, and the applicant has not proved that it contains any factual error.
4.
The text of the original Page 7 dated November 19, 2007, proves that the appli-
cant was in fact counseled about an inappropriate relationship on November 15, 2007, as a result
of the findings of the investigation. In taking final action on the investigation on December 31,
2007, CAPT N stated that the applicant had an “unduly familiar relationship” with YN2 X’s
wife, which was “of a nature to bring discredit upon the Coast Guard and was a significant con-
tributing factor in triggering [YN2 X’s] misconduct.” The fact that CAPT N chose to dismiss
YN2 X’s charges against the applicant does not negate the finding in the investigation that the
applicant had engaged in an inappropriate relationship with a fellow yeoman’s wife. CAPT N
and the investigator apparently found some of YN2 X’s admissions to the investigator to be more
credible than the applicant’s later claims. In this regard, the Board notes that while the applicant
claimed that at about 0430 on the night of October 12, 2007, he awoke to the sound of YN2 X in
his bathroom screaming at his wife, who had been sleeping in a spare room, and later found his
6 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter
standard in 2003 in 33 C.F.R.§ 52.24(b)).
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.
1979).
front door kicked in and the jamb destroyed, YN2 X admitted that after becoming suspicious
when his wife said she was staying at a girlfriend’s house, he found his wife’s car parked outside
the applicant’s house, kicked in the applicant’s front door, went upstairs, and found his wife in
the bathroom fixing her appearance while the applicant was in the bedroom making the bed.
CAPT N responded to the applicant’s request to expunge the original Page 7 by
revising it. The disputed, replacement Page 7 is re-categorized as an entry under Article 8.H.6.c.
of the Personnel Manual, rather than a more negative entry referencing the UCMJ. In addition,
CAPT N omitted the following derogatory sentence from the original Page 7: “I have deter-
mined that your association with the spouse of that co-worker was prejudicial to good order and
discipline and has had a measurably divisive effect on the morale and cohesion of this com-
mand.” The fact that CAPT N revised the Page 7 to be less derogatory, however, does not negate
his finding on December 31, 2007, that the applicant had actually engaged in an “unduly familiar
relationship” with YN2 X’s wife, which was “of a nature to bring discredit upon the Coast Guard
and was a significant contributing factor in triggering [YN2 X’s] misconduct.”
The disputed Page 7 was in the applicant’s record when he was considered for
appointment to CWO in 2008. The 2008 CWO appointment board did not disqualify him, and
his name appeared as #27 out of 40 yeomen on the appointment eligibility list but not above the
cutoff for appointment.
6.
7.
5.
8.
In the professional judgment of at least two-thirds of the 2009 CWO appointment
Board, however, the information in the disputed Page 7 disqualified the applicant for appoint-
ment to CWO under Article 1.D.8.e. of the Personnel Manual. The applicant alleges, therefore,
that CWO selection board members are misinterpreting the disputed Page 7 and drawing an
erroneous conclusion that he had engaged in an inappropriate relationship. He alleges that this
interpretation is erroneous because the Page 7 states only that he was counseled about allegations
of an inappropriate relationship. The 2009 CWO appointment board’s report shows that at least
two-thirds of the board members interpreted the disputed Page 7 and no-contact order to mean
that the applicant had had an inappropriate relationship with the spouse of a Coast Guard mem-
ber. Therefore, the Board finds that, as the applicant alleged, some CWO appointment board
members have interpreted the text of the disputed Page 7 as evidence of an inappropriate rela-
tionship. However, the applicant has not proved that this interpretation is actually erroneous.
CAPT N’s final action on the investigation clearly shows that he found that the applicant had
engaged in an inappropriate relationship with another member’s wife. Therefore, while the 2009
CWO appointment board members may be assuming that the allegations about which the
applicant was counseled are true, the preponderance of the evidence in the record shows that
their assumption is accurate.
The applicant alleged that CAPT N’s revision of the Page 7 and strong endorse-
ment of his candidacy for appointment to CWO show that CAPT N did not intend for the
disputed Page 7 to hinder his career by revealing CAPT N’s finding that he had engaged in an
inappropriate relationship. He alleged that it is therefore unjust for the Page 7 to cause the CWO
appointment board to reject him as a fully qualified candidate. However, CAPT N had the
authority to withdraw the Page 7 altogether and chose not to do so.8 Therefore, the Board cannot
8 Under Article 14.B.2.a. of the Personnel Manual, a member may appeal a Page 7 to his command.
conclude that CAPT N thought that the applicant’s conduct should not be known to and con-
sidered by CWO appointment boards. The preponderance of the evidence shows that the
disputed Page 7 is factually accurate and is not causing CWO appointment board members to
draw erroneous conclusions. Those board members are required to use their best professional
judgment in assessing each candidate, not to assess a candidate’s record as the candidate or even
his CO want it to be assessed. The applicant has not proved by a preponderance of the evidence
that the 2009 CWO appointment board members failed in their duty or were mistaken about his
conduct.
9.
Accordingly, the applicant’s requests should be denied because the Board finds no
grounds for removing the disputed Page 7 from his record or for second-guessing the 2009 CWO
appointment board’s determination that he was not fully qualified for appointment to CWO.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
The application of YN1 xxxxxxxxxxxxxxxxxxxx, USCG, for correction of his military
ORDER
record is denied.
Lillian Cheng
George J. Jordan
Paul B. Oman
CG | BCMR | Enlisted Performance | 1999-124
The two disputed page 7s were in his record before this appointment board. The xxx stated that xxx was a member of the section at that time. The applicant appeared xxx on the 199x Final Eligibility List for appointment to CWO and would have been appointed to CWO on June 1, 199x, except for the incompleteness of his record.
CG | BCMR | OER and or Failure of Selection | 2011-007
The applicant stated that for 2 of the 13 years Capt H served as his supervisor for the disputed OERs. For the reasons discussed below, the Board finds that the applicant has submitted insufficient evidence to prove that Capt H was biased against the applicant in the disputed OERs; that YN1 B influenced Capt H to give the applicant erroneous and/or unjust OERs; that Capt H influenced the reporting officer to mark the applicant unjustly or erroneously on the disputed OER; or that Capt H...
CG | BCMR | OER and or Failure of Selection | 2009-249
The applicant stated that under 33 C.F.R. The PRRB noted that CDR X had submitted a statement saying that “there are several presentations of fact and conclusion within [the applicant’s] application that are not accurate, based on my knowledge.” With respect to the applicant’s alleged supervisory relationship with LTJG X, the PRRB wrote that as the Operations Officer, the applicant was the Watch Captain of the VTS and noted the comment that she “‘oversaw the watch standing and...
CG | BCMR | Advancement and Promotion | 2004-086
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CG | BCMR | OER and or Failure of Selection | 2010-093
With regard to scheduling morale events, the applicant stated that the Morale Committee was not his responsibility; that he passed the proposed dates for morale events on March 11 and April 11, 2008, to his supervisor, CDR X, and to CAPT X’s administrative assistant at a meeting of Department Heads on February 27, 2008; and that CAPT X learned he had done so before she prepared the disputed OER. The applicant’s second OER as the Xxxxxx Department Head, dated March 31, 2007, was his first as...
CG | BCMR | OER and or Failure of Selection | 2011-179
He alleged that the OER is a product of bias and tremendous hostility on the part of the commanding officer (CO) of the cutter, who prepared the disputed OER.1 The applicant alleged that in May 2007, after he had served as XO for about a year, the commanding officer of his cutter “was involved in an alcohol-related incident and was imme- diately relieved for cause.”2 The applicant served as acting commanding officer until the new CO reported aboard on July 11, 2007. However, the commanding...
CG | BCMR | Advancement and Promotion | 2009-135
This final decision, dated January 28, 2010, is approved and signed by the three duly APPLICANT’S REQUEST AND ALLEGATIONS The applicant, a chief yeoman (YNC; pay grade E-7) in the Coast Guard, asked the Board to expunge an annual Enlisted Employee Review (EER) he received for the period October 1, 2004, to September 30, 2005, when he was assigned as the Chief of Administration and the Ser- vicing Personnel Office (SPO) of Sector Xxxxxx, and asked that “any possible advancements possibly...
CG | BCMR | Advancement and Promotion | 2010-265
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CG | BCMR | Discharge and Reenlistment Codes | 2012-003
The Recorder provided the applicant with the exhibits he intended to submit and a list of 22 witnesses who were to testify regarding “drug abuse, discreditable involvement with civil authorities, sexual perversion, and abuse of family member.” The exhibits included extracts of the Personnel Manual, photographs of bruises on the applicant’s wife and daughter and of the applicant performing at a bachelorette party, the applicant’s PDR, a CGIS report of an investiga- tion into the applicant’s...
CG | BCMR | Other Cases | 2008-187
Finally, the applicant stated, he was advised that he could sell 40.5 days of leave and also have 20 days of administrative absence,4 which he requested in an email to the YN2 on July 19, 2007. • Later that evening, a YN1 at the ISC sent an email to both the YN2 and the applicant stat- ing that he had misinterpreted the Personnel Manual and that administrative leave could be taken in increments.5 • On the morning of July 19, 2007, the applicant sent the YN2 an email saying that “[t]he new...